Barnett v. Commtec/Pomeroy Computer Resources

• Decision Date: 20 July 2006
• Docket Number: Civil Action No. 2:05-cv-00439.
• Citation: 439 F.Supp.2d 598
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Mark J. BARNETT, Individually, Plaintiff, v. COMMTEC/POMEROY COMPUTER RESOURCES, INC., Defendant.

439 F.Supp.2d 598

Mark J. BARNETT, Individually, Plaintiff, v. COMMTEC/POMEROY COMPUTER RESOURCES, INC., Defendant.

Civil Action No. 2:05-cv-00439.

United States District Court, S.D. West Virginia, Charleston Division.

July 20, 2006.

Katherine L. Dooley, The Dooley Law Firm, Charleston, WV, for Plaintiff.

Amy R. Humphreys, Chad A. Mooney, Richard D. Jones, Flaherty Sensabaugh & Bonasso, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

GOODWIN, District Judge.

In January 1997, the West Virginia Department of Education ("WVDE") issued an official Request for Proposal ("RFP") to solicit bids for a comprehensive computer system in state schools. The defendant, Commtec/Pomeroy Computer Resources, Inc. ("Pomeroy"), submitted the successful bid and entered into a contract ("the SUCCESS contract") with the WVDE on July 8, 1997. The plaintiff, Mark J. Barnett, allegedly worked for Pomeroy on this contract as a cable installer.

Beginning in July 1998, the WVDE investigated Pomeroy to determine whether it was in compliance with West Virginia law governing state contracts. The Division of Labor found that the West Virginia Prevailing Wage Act ("PWA"), W. Va.Code §§ 21-5A-1 to-11 (Repl.Vol.2002), applied to Pomeroy's contract with the WVDE. Specifically, the investigation revealed that a category of Pomeroy's workforce classified as cable pullers was entitled to electricians' wages. Following the investigation, the Division of Labor initiated an administrative proceeding against Pomeroy. On June 14, 2000, the administrative proceeding determined Pomeroy was required to pay its cable pullers the prevailing wage for electricians. Circuit Judge Tod Kaufman of the Circuit Court of Kanawha County affirmed the decision on March 5, 2001, and held that Pomeroy owed the workers $255,859 in unpaid prevailing wages and $255,859 in statutory penalties. In a second administrative proceeding, an administrative hearing examiner ruled that Pomeroy did not make an honest mistake in failing to pay prevailing wages to the workers. The Commissioner of Labor affirmed this decision on July 22, 2002, and the West Virginia Supreme Court of Appeals denied Pomeroy's petition for appeal on January 15, 2004.

Pomeroy then refused to pay, and the Division of Labor filed a motion to enforce the judgment with Judge Kaufman. Following some questions about the Commissioner of Labor's enforcement authority, the Division of Labor and Pomeroy entered into a settlement agreement. As a condition of the settlement, the Division of Labor waived the statutory penalty originally assessed by Judge Kaufman. Pursuant to the agreement, Pomeroy offered each worker a sum of money in exchange for a complete release of claims. Although most workers accepted the offer and signed a release, the plaintiff did not.

The plaintiff then filed this action in the Circuit Court of Kanawha County against Pomeroy, who removed it to this court based on diversity jurisdiction. Previously, I denied the defendant's motion to dismiss the plaintiffs suit on statute of limitations grounds. Barnett v. Commtec/Pomeroy Comp. Res., Inc., 2006 U.S. Dist. LEXIS 10001 (S.D.W.Va. Feb. 15, 2006). Three summary judgment motions are now pending:

1. Plaintiffs motion for summary judgment predicated on principles of res judicata and the Rooker-Feldman doctrine [Docket 52].

2. Defendant's motion for summary judgment on grounds that the PWA does not apply to the SUCCESS contract [Docket 54].

3. Defendant's partial'motion for summary judgment on grounds that if the PWA does apply to the SUCCESS contract, the plaintiff is precluded from recovery because the defendant made an honest mistake [Docket 56].

Because I FIND that the PWA does not apply to the SUCCESS contract, I GRANT the defendant's motion in full [Docket 54], DENY the plaintiffs motion [Docket 52], and DENY as MOOT the defendant's motion for partial summary judgment [Docket 56].

I. Summary Judgment Standard

Summary judgment is appropriate when, after reviewing the record taken as a whole, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party seeking summary judgment has the initial burden to show an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party must demonstrate that a genuine issue of material fact exits; mere allegations or denials are insufficient. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. A mere scintilla of evidence supporting the case also is insufficient. Id.; Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994). The court construes the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmovant's favor. Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348.

II. The Prevailing Wage Act

The PWA protects laborers working on public improvement projects from substandard wages by requiring employers to pay at least the prevailing wage for each specialization. Affiliated Constr. Trades Found. v. Univ. of W. Va. Bd. of Trs., 210 W.Va. 456, 557 S.E.2d 863, 873 (2001). Specifically, the PWA provides:

It is hereby declared to be the policy of the State of West Virginia that a wage of no less than the prevailing hourly rate of wages for work of a similar character in the locality in this State in which the construction is performed shall be paid to all workmen employed by or on behalf of any public authority engaged in the construction of public improvements.

W. Va.Code § 21-5A-2. The PWA applied to the SUCCESS contract if the SUCCESS contract involved "the construction of public improvements."¹

The PWA defines a "public improvement" as "buildings, roads, highways, bridges . . . and all other structures upon which construction may be let to contract by the State of West Virginia or any political subdivision thereof." W. Va.Code § 21-5A-1(4) (emphasis added). To determine whether a "public improvement" falls under the PWA's definition, the West Virginia Supreme Court of Appeals examines:

(1) [W]hether a public entity initiated the construction project; (2) the extent of control retained by the public entity during the development and construction phases; (3) the extent to which the project will be used for a public purpose; (4) whether public funds are used either directly for the costs of construction or indirectly by means of a lease arrangement which contemplates payments essentially covering the amount of the construction; (5) whether the contract is written as a lease solely to evade the requirements of the prevailing wage act; and (6) all other relevant factors bearing on the ultimate issue of whether the project is indeed a public project notwithstanding novel financial mechanisms.

Affiliated Constr. Trades Found., 557 S.E.2d at 876. For the purposes of this opinion, I will assume the SUCCESS contract constitutes a "public improvement" under the PWA.

To qualify under the PWA, however, the contract must not only involve a "public improvement" but also must involve the "construction of a public improvement. W. Va.Code § 21-5A-2. The PWA defines "construction" as "any construction, reconstruction, improvement, enlargement, painting, decorating, or repair of any public improvement let to contract." Id. § 21-5A-1(2). The Act also explains that "`construction' shall not be construed to include temporary or emergency repairs." Id. Unlike the phrase "public improvement," the West Virginia Supreme Court has not provided guidance on interpreting the term "construction."² In addition, neither party cited any case law for determining the proper interpretation of the term.

The SUCCESS contract was an "open end contract for hardware, software, and services." (Ex. B to Def.'s Mot. for Summ. J.) The contract included six mandatory project components: 1) system integration responsibilities; 2) software, courseware, and curriculum materials; 3) staff development; 4) hardware; network and workstation operating system software; 5) network cabling services and accessories; and 6) on-going support. (Id.) The defendant attached the affidavit of a Pomeroy Regional Vice President—William A. Rutherford—to its summary judgment motion to explain that the defendant's cable pullers installed low-voltage wiring for the systems set forth in the SUCCESS contract. (Ex. C to Def.'s Mot. for Summ. J.) The defendant's motion contends that low-voltage cable wiring transmits messaging only, and thus differs from high-voltage cable wiring that transmits electricity. (Mem. Supp. Def.'s Mot. for Summ. J. 2.) The defendant argues "the running of computer cabling does not rise to the level of `construction' within the meaning of the PWA." (Id. at 5.) The plaintiffs response to the defendant's summary judgment motion inexplicably fails to address this argument. Instead, the plaintiff relies on the arguments that res judicata and the Rooker-Feldman doctrine apply.

To examine whether the installation and maintenance of a comprehensive technological system in a public improvement constitutes "construction" as contemplated by the PWA, the interpretations of other States' comparable wage laws are helpful. New Mexico has considered whether its law, which is comparable to the PWA, applies to the installation of a telecommunications system within a state university. Univ. Commc'ns. Sys., Inc. v. Smith, 104 N.M. 754, 726 P.2d 1384, 1385 (1986). The New Mexico law applied to state contracts "for construction, alteration, demolition or repair, or any combination of these, including painting and decorating of public buildings." N.M. Stat. § 13-4-11 (Repl. Pamp.1985).³ The facts of the New Mexico case are strikingly similar...